United States District Court, W.D. Pennsylvania
Flowers Conti Chief United States District Court Judge.
Second Amended Complaint in the present action was filed with
this court on September 22, 2017. (ECF No. 46). The case was
referred to a United States magistrate judge for pretrial
proceedings in accordance with the Magistrate Judges Act, 28
U.S.C. § 636(b)(1), and Local Rules of Court 72.C and
the court are three Reports and Recommendations
(individually, an "R&R") of the magistrate
judge (ECF Nos. 101, 102, and 108), recommending as follows:
1. R&R dated March 8, 2018 (ECF No. 101): Motion for
Summary Judgment filed by defendant Paul Iannetti (ECF No.
77) be granted, and that the Motion to Deny Motion for
Summary judgment filed by plaintiff Andy Buxton
("Plaintiff) (ECF No. 81) be denied; 2. R&R dated
March 13, 2018 (ECF No. 102): Defendant Rivers Casino's
Motion to Dismiss (ECF No. 61) be granted and that all of
Plaintiffs claims against Rivers Casino be dismissed with
prejudice; and 3. R&R dated April 27, 2018 (ECF No. 108):
The Motions to Dismiss for failure to state a claim (ECF Nos.
53, 58, 92, 98) filed by defendants Pennsylvania Office of
Attorney General, Iva C. Dougherty ("Dougherty"),
Katie A. Wymard ("Wymard"), Richard Miller
("Miller"), Robert Marsili ("Marsili"),
Andrew Toth ("Toth"), Christopher Antonucci
("Antonucci"), Scott Shank ("Shank"), Dan
Sammartino ("Sammartino"), Allegheny County, City
of North Huntingdon ("North Huntingdon") and Amber
Noel ("Noel") be granted and that all claims
against those defendants be dismissed with prejudice.
instance the parties were informed that in accordance with
the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and
(C), and Local Rule of Court 72.D.2, they had fourteen days
to file any objections and that failure to file timely
objections will constitute a waiver of appellate rights.
Plaintiff filed Objections to the Reports and Recommendations
(ECF Nos. 105, 106, 109) and one defendant, Iannetti, filed a
Response in Opposition (ECF No. 107). The matter is ripe for
district court must make a de novo determination of
those portions of a report to which objections are made. 28
U.S.C. § 636(b)(1)(C); see Henderson v.
Carlson, 812 F.2d 874, 877 (3d Cir.1987). The court may
accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge. The district
court may also receive further evidence or recommit the
matter to the magistrate judge with instructions.
review of the Plaintiffs objections, the court concludes that
some have merit, but most do not, and will adopt in part and
reject in part the R&Rs as the Opinion of the court.
Objections Applicable to All Three R&Rs
Blanket Challenge to Magistrate Judge Authorization
first objections to be addressed are related to the powers
granted to the magistrate judge by statute and local rule, as
mentioned supra. In each of his three objections to
the R&Rs, Plaintiff objects "to the Magistrate Judge
in regards she is not authorized to hear nor recommend that
plaintiff [sic] case be dismissed." (ECF No. 105 at 1,
No. 106 at 1, No. 109 at 1). These objections are overruled.
The Magistrate Judges Act provides express authorization for
the district court judge to designate a magistrate judge to
"submit to a judge of the court proposed findings of
fact and recommendations for the disposition, by a judge of
the court," of dispositive motions. 28 U.S.C. §
636(b)(1)(B). Plaintiff was afforded an opportunity, by
statute and local rule, to file any objections to the
magistrate judge's recommendation, and the recommendation
is subject to de novo review. 28 U.S.C. §
636(b)(1)(B); LCvR 72D. This Memorandum Opinion reflects the
de novo review to which the parties are entitled.
Request for Appointment of Counsel
objects to the court's failure to appoint counsel citing
the complexity of his case. (ECF Nos. 105 at 1, 109 at 1;
see 106 at 1). These objections are overruled.
"[I]ndigent civil litigants possess neither a
constitutional nor a statutory right to appointed
counsel." Gordon v. Gonzalez, 232 Fed.Appx.
153, 156 (3d Cir. 2007) (quoting Montgomery v.
Pinchak, 294 F.3d 492, 498 (3d Cir. 2002). This matter
was previously explained to Plaintiff in a Memorandum Order
dated November 3, 2017. (ECF No. 71 at 1). To the extent
Plaintiff seeks reconsideration of that ruling, the request
is denied, for the reasons stated in that same Order and
because he did not present any evidence or argument which
would change the court's discretionary decision after
application of the factors set forth in Tabron v.
Grace, 6 F.3d 147, 155 (3d Cir. 1993).
ecti ons to R&R 101: Defendant Iannetti
Plaintiff objects to the recommendation that because he
failed to comply with the legal requirement that he file a
certificate of merit ("COM"), attorney
Iannetti's Motion for Summary Judgment be granted and
that Plaintiffs claims against attorney Iannetti be dismissed
with prejudice. The magistrate judge was correct in her
analysis. The requirement that litigants comply with the COM
requirements apply with equal force to pro se
litigants, as the case law cited in the R&R holds.
Hodge v. U.S. Dept. of Justice, 372 Fed.Appx. 264,
267 (3d Cir. 2010); Iwanejko v. Cohen & Grigsby,
P.C. 249 Fed.Appx. 938, 944 (3d Cir. 2007). Even so,
rather than accepting the recommendation that summary
judgment be granted and judgment entered in favor of Ianetti,
the court will instead grant Ianetti's motion to dismiss
(ECF No. 63). This disposition is appropriate under the
circumstances and procedural posture of the case. See
Schmiegal v. Uchal, 800 F.3d 113, n.13 (3d Cir. 2015)
(explaining impact of the difference in deadlines for filing
a motion for summary judgment vis. motion to dismiss
under the Federal Rules of Civil Procedure on the grounds of
failure to meet COM requirements under Pennsylvania law). Any
attempt at amendment would be futile, and the dismissal as to
Iannetti is with prejudice.
Objections to R&R 102: Defendant Rivers Casino
Second Amended Complaint Plaintiff alleges defendant Rivers
Casino provided falsified documents to agents of the
Commonwealth Attorney General's Office that were
thereafter used in criminal proceedings against him. He
alleges that Rivers Casino engaged in a civil conspiracy with
other defendants to deny his rights as ...